Government must rewrite HHS mandate by March 31, court orders

WASHINGTON, D.C. — A federal appeals court in Washington, D.C., has sided with Belmont Abbey College in its lawsuit challenging the Obama administration's mandate requiring most employers to provide free contraceptives in their employee insurance plans starting in 2013.

The three judges on the U.S. Court of Appeals for the District of Columbia Circuit issued their ruling Dec. 18, only days after sparring with lawyers on both sides of the case during lengthy oral arguments Dec. 14.

The Dec. 18 ruling does not overturn the controversial contraception mandate, yet it uses strong language ordering the Obama administration to rewrite the mandate so that it would not harm religious organizations such as Belmont Abbey College. It also gave the administration a deadline of March 31, 2013, and said it will review the administration's actions every 60 days until it complies.

The ruling also puts the case on hold, so that if the college objects to the government's rewritten mandate it will not have to refile the case.

Dr. William Thierfelder, president of Belmont Abbey College, called the favorable ruling "a major victory" and "the answers to our prayers."

"Christmas came early this year!" Thierfelder said in a written statement issued late Tuesday.

THE HHS MANDATE

The Health and Human Services (HHS) mandate is part of implementing the Patient Protection and Affordable Care Act of 2010, which requires nearly all employers to provide free preventative health care coverage specifically for women. That coverage includes services such as mammograms, prenatal care and cervical cancer screenings, but it also mandates free contraceptives, sterilizations and abortion-inducing drugs – all of which are contrary to Catholic teaching.

Religious employers may be exempted from the HHS mandate only if they hire and serve people primarily of their own faith – so Catholic colleges, hospitals, charities and others would not qualify. The mandate does not include a conscience clause for employers who object to providing such coverage on moral grounds. Self-insured religious organizations, including the Diocese of Charlotte, would also not be able to avoid the mandate.

Belmont Abbey College was the first to sue the Obama administration, charging that the HHS mandate is an unconstitutional violation of religious freedom. Its case – bundled last fall with a similar case by Wheaton College, a Christian liberal arts college in Illinois, and fast-tracked through the federal courts – is the highest judicial review of the HHS mandate to date.

Approximately 30 other lawsuits are working their way through the federal courts on behalf of more than 50 Catholic dioceses, religious colleges, charity agencies and concerned business owners – including the archdioceses of Washington, New York, Atlanta and Miami, EWTN, Domino's Pizza and Hobby Lobby.

'A WIN'

Both colleges were represented by the Becket Fund for Religious Liberty, a Washington, D.C.-based non-profit law firm handling several of the HHS mandate cases.

“This is a win not just for Belmont Abbey and Wheaton, but for all religious non-profits challenging the mandate,” said Kyle Duncan, the Becket Fund lawyer who argued the case for the colleges, in a written statement.

In their three-page ruling, the judges overturned a lower court's decision tossing out the case on the grounds that the religious colleges lacked legal standing and that the issue was "not ripe" – that is, the colleges had not been harmed yet by the mandate, which takes effect in August 2013. After 2013, employers who do not comply will face fines of $100 per employee per day. Belmont Abbey College and Wheaton College have about 200 employees and 700 employees, respectively, so estimated fines would total $300,000 per year for Belmont Abbey and $1.35 million per year for Wheaton – an urgent concern for them as the government's unfulfilled promises to rewrite the mandate have put them in limbo, Duncan argued.

The colleges "clearly had standing," the judges said, yet they noted, "The ripeness question is more difficult."

In their order, the judges acknowledged the government's promise made during the Dec. 14 oral arguments to " never enforce" the mandate "in its current form" against religious organizations like Belmont Abbey and Wheaton colleges. The government also promised to fix the mandate "in the first quarter of 2013 and would issue a new Final Rule before August 2013."

"We take that as a binding commitment," the judges said in their order.

Thierfelder said afterwards, "The two concessions made by the government lawyers in court to never enforce the current mandate against Belmont Abbey College and to publish a proposed new rule by the end of the first quarter in 2013, are the answers to our prayers."

The judges will monitor the government's compliance. The Obama administration was ordered to report back to the court every 60 days, starting in mid-February.

"We take the government at its word and will hold it to it," the judges said in their order.

“The D.C. Circuit has now made it clear that government promises and press conferences are not enough to protect religious freedom,” noted the Becket Fund's Duncan. “The court is not going to let the government slide by on non-binding promises to fix the problem down the road.”

'MOMENTUM'

Over the past several weeks, dozens of religious institutions lined up to support the colleges' case – a sign of "momentum building," Thierfelder recently said.

The case attracted numerous amicus ("friend of the court") briefs from numerous Catholic institutions, including the Catholic University of America, the Archdiocese of Washington, D.C., and Catholic Charities of the Archdiocese of Washington, D.C. Also supporting the abbey's case were 13 states, several other religious denominations, numerous medical associations, civil rights groups and legal aid organizations.

Thierfelder called this "groundswell" of support significant – because it's coming not just from Catholics, and because it demonstrates the seriousness of the constitutional threat posed by the HHS mandate. After all, if the government can force a Catholic institution to pay for contraception and sterilization in violation of Catholic teaching, then the freedom of any religious group could be threatened.

"There are a lot of groups that have gotten behind this because they've seen the importance of this," he said.